Supreme Court Rules: States Are on Their Own

June 28, 2019

In the final hours of the 2019 term, the U.S. Supreme Court ruled 5 to 4 that federal courts lack jurisdiction to decide political gerrymandering cases. That means the door to justice in federal courts is closed.

In his majority opinion, Chief Justice John G. Roberts wrote “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

In effect, the high court turned its back on every citizen’s right to free and fair elections, denying the underlying principles of representative government.

In a scathing dissent, Justice Elena Kagan wrote:

For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.
And not just any constitutional violation. The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.

In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.

These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government.

Justice Roberts placed responsibility to address gerrymandering on state courts and state legislatures:

Our conclusion does not condone excessive partisan gerrymandering. Nor does our conclusion condemn complaints about districting to echo into a void. The States, for example, are actively addressing the issue on a number of fronts.

This decision assumes that all states have access to judicial or legislative remedy. In reality, states without citizen initiative and referendum depend on the same legislators who benefit from gerrymandered lines to take the lead in providing a remedy. This catch-22 leaves voters defenseless against the legalized vote-stealing cheerfully endorsed by Tom Hofeller, architect of gerrymandered maps that deprived millions of voters a voice in both Congress and state legislatures over several decades.

While the Pennsylvania Supreme Court League vs PA decision stands as a partial and temporary remedy, providing guard rails in Pennsylvania for the most extreme and visible gerrymandering, we will be renewing our fight to enact an independent citizens commission for both Congressional and legislative redistricting before the 2021 process.

We encourage the majority leaders in Harrisburg to consider some unshakeable realities:

The fifth member of the commission that will draw state senate and house lines will be chosen by the majority of the PA Supreme Court.

That court is the same court some PA legislators threatened with impeachment for their work in resolving the gerrymandered Congressional districts.

The court’s decision was dependent on several cycles of unconstitutional, badly gerrymandered maps, which suggests any new maps, no matter how detrimental to one party, could stand for several elections.

The U.S. Supreme Court has promised it will not intervene.

One more reality, demonstrated in the breakdown of civility in the PA Senate budget fight, with leaders shouting and gavels flying: a growing majority of voters and many PA legislators are angry at our unaccountable, unresponsive Legislature and ready to raise their voices to be heard. Citizens demand an end to the current conflict of interest that allows legislators to choose their voters and barricade themselves and the legislative process from the will of the people. It is long past time for our Pennsylvania legislature to bring this solution to a vote.